The U.S. Supreme Court in Washington, D.C. (Mark Wilson / Getty Images )
WASHINGTON — The Supreme Court agreed Monday to consider blocking a constitutional challenge to the government’s secret wiretapping of international phone calls and emails.
At issue is whether Americans who have regular dealings with overseas clients and co-workers can sue to challenge the sweep of this surveillance if they have a “reasonable fear” their calls will be monitored.
The case, to be heard in the fall, will put a spotlight on a secret surveillance program that won congressional approval in the last year of President George W. Bush’s presidency.
Prior to 2008, the Foreign Intelligence Surveillance Act said the government must obtain a search warrant from a judge before it listened to phone calls. Generally, this required officials to show the target was a suspected spy or terrorist.
Bush bypassed this requirement after the terrorist attacks in 2001 and ordered the intelligence agencies to scan international phone calls and emails in an effort to detect new and emerging plots.
When this program was revealed, critics said this “warrantless wiretapping” was illegal and unconstitutional.
But in 2008, Congress revised the law to give intelligence agencies broad power to monitor electronic communications, so long as their targets were foreigners who were believed to be outside the United States. The new law said the attorney general and the director of National Intelligence may order the “mass acquisition” of electronic traffic from certain foreign persons or groups.
The American Civil Liberties Union sued, alleging this “dragnet surveillance” threatened the privacy rights of Americans and violated the 4th Amendment’s ban on unreasonable searches. The plaintiffs were lawyers, journalists and human rights activists who said they regularly spoke on the phone or exchanged emails with persons who could be targets of the surveillance.
The ACLU said it was troubled by the potential sweep of these secret orders. They could seek “all telephone and e-mail communications to and from countries of foreign policy interest — for example, Russia, Venezuela or Israel — including communications made to and from U.S. citizens and residents.”
The government’s lawyers called that “speculation” not based on facts or evidence, but the orders remain secret.
The lawsuit, however, is still in its preliminary stages. A federal judge in New York threw out the claim on the grounds that the plaintiffs could not show they had suffered an injury. The law made clear they were not the targets of the surveillance.
But last year, a closely divided 2nd Circuit Court of Appeals in New York cleared the case to proceed. Its judges ruled the plaintiffs had a “reasonable fear” their private calls and emails would be picked up by intelligence agents.
U.S. Solicitor General Donald Verrilli appealed on behalf of Director of National Intelligence James Clapper and urged the high court to throw out the suit as a threat to national security.
The justices said they had voted to hear Clapper vs. Amnesty International and decide whether the plaintiffs had standing to sue.